Legal Help Desk

The transgender health care crisis is not only well-documented in national surveys in the last few years, but is revealed in story after story of transgender people who have been refused care by health care providers and refused medically-necessary coverage by the health insurance industry. The discrimination and abuse that transgender people face raises concerns about the ability to access care and, more problematically, a reluctance to seek care leading to poorer health outcomes. However, recent progress has been made in ending some of these discriminatory exclusions of coverage and ensuring better access to health care for transgender people.

With the announcement of Oregon’s vote to approve coverage of medically necessary health care for transgender people under Medicaid on August 14, 2014, Oregon became the fifth jurisdiction (CA, MA, VT, DC) to cover transgender medical services, including gender reassignment surgery, as a standard benefit in its government health plan for lower-income and disabled persons. In July, the Illinois Department of Insurance issued a bulletin reminding private insurers in the state that Illinois state law and the Affordable Care Act (ACA) prohibit discrimination against transgender policy holders, mirroring similar bulletins issued by California, Colorado, Oregon, Washington, Maryland, Connecticut , Vermont and the District of Columbia. Finally, also in July, the State of Washington Public Employees Benefit Board (PEBB) voted to support transgender inclusive healthcare for public employees in Washington. This vote comes more than 18 months after the State of Oregon changed its state employees' health care policies to include transition-related health care for transgender people in response to a lawsuit Lambda Legal filed on behalf of a transgender state employee. (Read more about our Esquivel v. State of Oregon case here.)

These steps at the state level follow the ruling this past July out of the U.S. Department of Health and Human Services (HHS) invalidating Medicare’s policy of categorically excluding transition-related surgery, thereby allowing for decisions about coverage for transition-related care to be made on a case-by-case basis.

While these steps are significant, the progress is incremental at best and transgender people continue to face significant barriers to accessing medical services despite the ACA and existing civil rights protections. These barriers and discriminatory practices are sure to come into clearer focus this fall when HHS issues proposed rules under section 1557 of the ACA. Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age or disability for any health program receiving federal assistance, and HHS has stated further that section 1557’s sex discrimination prohibition extends to gender identity or failure to conform to conventional notions of masculinity or femininity. Earlier this year, Lambda Legal filed the first transgender discrimination case under section 1557 in the U.S. District Court for the Central District of Illinois on behalf of Naya Grace Taylor, a transgender woman denied hormone replacement therapy by her doctor. Ms. Taylor died unexpectedly this past June, but her case underscores the continuing barriers and challenges transgender individuals face in accessing health care services that are routinely provided to other patients. (Read more about Ms. Taylor’s case here.)

Furthermore, the recent Medicare rule change by HHS does not affect Medicaid, where coverage rules are made primarily at the state level. As noted above, to date only five jurisdictions have extended Medicaid coverage to transition-related medical services. The Sylvia Rivera Law Project (SRLP) and other groups have filed a lawsuit challenging a New York State regulation denying Medicaid recipients in New York access to gender reassignment surgery, hormones and other forms of care.

In addition to continuing institutional and regulatory barriers to care, transgender people are also frequently subjected to humiliating and degrading treatment in health care settings. Ms. Taylor’s experience is unfortunately not atypical. As documented in Lambda Legal’s survey “When Health Care Isn’t Caring,” (available here) 70 percent of transgender respondents reported one or more negative experiences in a health care setting. These experiences included: harsh or abusive language or treatment; health care professionals refusing to touch the patient or using excessive precautions; and physicians subjecting transgender patients to unnecessary, intrusive and degrading examinations.

Addressing these and related concerns, Lambda Legal joined with the Human Rights Campaign (HRC) and the New York City Bar Association to issue guidelines and policies hospitals can implement to foster a respectful and inclusive culture for the treatment of transgender patients (available here). In addition, Lambda Legal has prepared a comprehensive legal guide for transgender individuals and their advocates (available here).

We remain encouraged by recent progress at both the federal and state level, but we are also well aware that much remains to be done. Lambda Legal will continue to look for opportunities to expand health care access for transgender people through both policy work and impact litigation because lives depend on it.